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Oral arguments in the case against Ajit Pai's net neutrality repeal are scheduled for Friday morning, and net neutrality advocates are confident that they will be victorious.

The groups that sued the Federal Communications Commission to reverse the repeal argue that Pai offered insufficient legal justification for deregulating the broadband industry.

The Obama-era net neutrality rules, which were upheld in court in 2016, relied on the FCC's Title II authority over telecommunications services. When it eliminated the net neutrality rules, Pai's FCC argued that broadband is not a telecommunications service and that it should be treated instead as a lightly regulated information service.

Further Reading

Courts generally give deference to FCC classifications, so Pai's opponents will have the burden of proving that the FCC's reasoning wasn't legally sound.

"We are confident the court will vacate the FCC's decision and we look forward to Friday's oral arguments," said Chris Lewis, vice president of advocacy group Public Knowledge, one of dozens of petitioners seeking to overturn the repeal.

Is broadband “telecommunications”?

The oral arguments are scheduled to begin Friday at 9:30am at the US Court of Appeals for the District of Columbia Circuit and should last about three hours. The court provides live audio streams of all oral arguments. The sides have also detailed their arguments in court filings—here's the petitioners' joint brief and the FCC and Department of Justice defense of the repeal.

Lewis and other net neutrality proponents spoke to reporters about the upcoming oral arguments in a press conference Wednesday.

Under US law, telecommunications is defined as "the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received."

The FCC's argument that broadband isn't a telecommunications service doesn't hold up, according to advocacy group Free Press, another petitioner in the case.

"As a legal matter, broadband should be classified as a telecommunications service under the Communications Act," Free Press Policy Director (and attorney) Matt Wood said at the press conference. "ISPs send our speech to each other. They don't step in and dictate what we can say or change it in any way."

"Both the plain language [of the law] and congressional intent make clear that broadband is a telecommunications service," Markey said. "As the House author of the bill I know firsthand what we intended in 1996. Yet Chairman Pai ignored the statute and our intent when the FCC reclassified broadband to an information service and eliminated net neutrality rules."

It could be months before the court's three-judge panel issues a decision, and either side could appeal. There was a six-month wait between oral arguments and a ruling in the case that upheld Obama-era rules.

FCC: Broadband is an information service

US law defines an information service as "the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications."

The FCC/DoJ brief notes that the FCC had classified broadband as an information service under previous administrations before the Obama-era FCC decided that broadband is telecommunications. The government brief argues:

The Commission reasonably classified broadband Internet access as an information service because, among other things, it offers users the "capability" for "'acquiring' and 'retrieving' information" from websites and applications "and 'utilizing' information by interacting with stored data." The Supreme Court held in Brand X that it was reasonable for the Commission to conclude that Internet access is an information service, given that "subscribers can reach third-party Web sites via 'the World Wide Web, and browse their contents, [only] because their [broadband] provider offers the capability for… acquiring, [storing]… retrieving [and] utilizing… information.'" The agency made the same reasonable finding here.

The FCC's opponents argued in their brief that the Brand X decision from 2005 doesn't apply here. Brand X dealt with the question of how consumers perceive broadband provider services, but the business model used by ISPs at the time of Brand X is now "largely extinct," they wrote. Early ISPs "created their own portals and bolted their own add-on information services [such as email] onto their transmission path," the brief noted. But ISPs today serve primarily as a pathway to third-party services.

"The question on which the FCC now dwells is entirely different: is a transmission that otherwise meets the definition of 'telecommunications' properly classified as [an] 'information service' based on its 'capability' of facilitating interaction with third-party providers of information services? This question has nothing to do with consumer perception—the subject of Brand X's inquiry," they wrote.

FCC “ignored” investment evidence

The federal Administrative Procedure Act requires the FCC to "show that there are good reasons for the new policy," the 2016 ruling that upheld net neutrality rules said. Net neutrality proponents argue that Pai's FCC didn't provide a compelling policy justification for repeal.

The FCC "ignored evidence that undercuts its case, which proceeds from the false premise that network investments turn on a dime in reaction to the latest developments in Washington," Lewis said. "The FCC emphasized industry submissions that purported to show that [Title II] reclassification decreased network investment, while ignoring contrary statements from the same industry parties made to their investors."

Further Reading

Further Reading

The FCC/DoJ brief argues that "Total capital investment by broadband providers increased each year from 2009 to 2014; began to decrease when the Title II Order was enacted in 2015; and fell again in 2016—even though the economy as a whole continued growing." The FCC/DoJ brief said that Internet providers' statements to investors are "selective quotations," "susceptible to multiple interpretations... and do not address whether these companies would have increased investment in their networks" if net neutrality rules hadn't been adopted.

Pai's opponents are also challenging his attempt to preempt state net neutrality laws. The problem with the FCC's preemption argument, according to opponents, is that the FCC is trying to preempt state laws while simultaneously arguing that the FCC itself has no authority to strictly regulate broadband. If the FCC doesn't have authority over broadband, the FCC also lacks authority to preempt state broadband rules, the argument goes.

The FCC "claims to preempt state law without having under its own theories any authority to do so," Lewis said.

The FCC and DoJ argue that state net neutrality laws violate a "federal policy of nonregulation," and that broadband "is an interstate service that should be subject to uniform regulation."

Repeal’s risk to consumers

The FCC failed to consider how its repeal would increase risks for consumers, said Sarah Morris, deputy director of New America's Open Technology Institute. There's a long history of ISPs interfering with content, she said, pointing to interconnection payment disputes that slowed down Internet access for months at a time before the Obama-era FCC imposed net neutrality rules.

Incompas General Counsel Angie Kronenberg said that with net neutrality rules off the books, ISPs "can charge higher prices to their competitors over the Internet, they can slow them down, they can throttle them, they can favor their own programming. These are the things we're fighting for."

Things could get worse if the FCC wins in court, because ISPs seem to be on their "best behavior" while the neutrality repeal is still subject to court review, Mozilla COO Denelle Dixon said. Mozilla is the lead petitioner against the FCC in the case against the repeal.

Yesterday's press conference also included representatives of the Santa Clara County Fire Department, which suffered throttling at the hands of Verizon while fighting California's largest-ever wildfire last year.

"What the Verizon example shows is ISPs will act in their economic interest, disregarding public safety," Santa Clara County Counsel James Williams said.

Verizon's throttling of the fire department's "unlimited" data plan wouldn't necessarily have violated net neutrality rules. But the FCC could have evaluated the case under its Title II authority if it hadn't ceded its Title II authority over broadband.

"Right now, there is no cop on the beat to assess whether problematic behavior from ISPs is a violation of net neutrality," Morris said. "Under the previous net neutrality regime, we would have been able to have an administrative agency look at the facts [in Santa Clara] and determine whether a violation of the rules occurred. We no longer have that."

There are definitely information services on the internet. However, the internet also contains products like Skype, Discord, FaceTime, etc. that actually transmit, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received.

One might argue that the form is changed? as the raw video/audio being recorded is then encoded into internet-friendly data streams, which are then reassembled as the recipient views them. However, it would be very difficult to argue that the content of the information is vastly different.

It could be months before the court's three-judge panel issues a decision, and either side could appeal. There was a six-month wait between oral arguments and a ruling in the case that upheld Obama-era rules.

Maybe someone who knows more about legal processes could help me out here: Why does this take so long? What is happening in the intervening months and is it reasonable?

Quote:

The Commission reasonably classified broadband Internet access as an information service because, among other things, it offers users the "capability" for "'acquiring' and 'retrieving' information" from websites and applications "and 'utilizing' information by interacting with stored data." The Supreme Court held in Brand X that it was reasonable for the Commission to conclude that Internet access is an information service, given that "subscribers can reach third-party Web sites via 'the World Wide Web, and browse their contents, [only] because their [broadband] provider offers the capability for… acquiring, [storing]… retrieving [and] utilizing… information.'" The agency made the same reasonable finding here.

This functionality is a property of the client and the server but not the ISP. They have no more involvement in this than a telephone service provider does when I call my pharmacy's robo line to get the status of a prescription. It's the _server_ providing an "information service", not the pipe in between.

Broadband is telecommunications used to provide access to said information services.

I sincerely hope that the judge hearing this case is technically literate, but even if the plaintiffs prevail I expect the FCC to do what this administration does on a regular basis - do what they want and ignore the law.

There are definitely information services on the internet. However, the internet also contains products like Skype, Discord, FaceTime, etc. that actually transmit, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received.

One might argue that the form is changed? as the raw video/audio being recorded is then encoded into internet-friendly data streams, which are then reassembled as the recipient views them. However, it would be very difficult to argue that the content of the information is vastly different.

All that data encoding happens before the data is squirted out onto the Internet. So the date is the same on each end.

...the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications.

In the case of broadband Internet access, how does the FCC explain the "via telecommunications" language?

If Internet service is a data service, what is the telecommunications service over which it's operating?

I only regret that I have but one up to give for this comment.

This was my immediate thought, and I'd love if anyone can point to the jurisprudence or specific portions of the briefs which address this, seemingly, IANALish, glaring logical hole in the FCC's current argument.

I think it's clear that the FCC ignored common sense, public opinion, evidence provided by the FCC, and even their own rulemaking process when redefining Internet service as "not common carrier."

The problem is that, even if they hadn't ignored the public and had scrupulously followed the process (including dealing with the obvious shills and fake comments on their commenting process), they still have the legal authority to make a decision like this. (Specifically, to decide whether a service qualifies as telecommunications and falls under their regulatory authority.)

This highlights the problem with the FCC. It has too much power and not enough accountability. It can make huge decisions that affect the whole country and which can change the flow of billions of dollars.

One unelected person wields too much power.

This needs to end. We need a more reliable and direct system of governance of Federal commissions. When the People speak out against a rule change, or largely in favor of one, then the commission needs to be honor that. We simply can't have rogue actors running around wild in Washington DC, thinking that their political appointment gives them a mandate to flout the public will.

The past, the FCC has largely been an agency that puts the public's interests first, but that has changed, and this can't continue the way it has been going.

I think it's clear that the FCC ignored common sense, public opinion, evidence provided by the FCC, and even their own rulemaking process when redefining Internet service as "not common carrier."

The problem is that, even if they hadn't ignored the public and had scrupulously followed the process (including dealing with the obvious shills and fake comments on their commenting process), they still have the right to make this decision.

No, they don't. That is literally the whole point of this lawsuit. The FCC does not have the right to make a decision which is against either the public good or against reason and evidence. If they do, suing them to prove that is how you attain redress for invalid actions.

There are definitely information services on the internet. However, the internet also contains products like Skype, Discord, FaceTime, etc. that actually transmit, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received.

One might argue that the form is changed? as the raw video/audio being recorded is then encoded into internet-friendly data streams, which are then reassembled as the recipient views them. However, it would be very difficult to argue that the content of the information is vastly different.

The problem with calling the Internet an information service is that "The Internet" isn't the applications, sites, or software. The Internet is the network. The wires, the routers, and the computers carrying that data.

The Internet is a communication service. The individual applications that exist on the Internet are information services.

I'm not sure if this lack of distinction is intentional or due to ignorance, but it clearly enables and fuels this miscategorization of Internet providers as "Information" service providers, rather than telecommunications service providers.

There are definitely information services on the internet. However, the internet also contains products like Skype, Discord, FaceTime, etc. that actually transmit, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received.

One might argue that the form is changed? as the raw video/audio being recorded is then encoded into internet-friendly data streams, which are then reassembled as the recipient views them. However, it would be very difficult to argue that the content of the information is vastly different.

I like to imagine a wired phone handset connected to a black box wired to some kind of plug in the wall. If I use this to make a phone call, which is clearly "telecommunications", does it matter what's inside the box and wires, whether it's PSTN and copper or Skype and Internet and fiber? Shouldn't they be regulated exactly the same? Anything else would fail a Duck Test.

So in that sense, the ISP provides a telecommunications service and Skype also provides telecommunications, right? Seems reasonable to me (IANALawyer/Lawmaker/Regulator). Though the FCC under Bush (43) walked a pretty fine line, that VoIP which interconnected with PSTN was technically Title I but had several Title II obligations (911, USF contributions, TSF contributions, disability access requirements).

...the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications.

In the case of broadband Internet access, how does the FCC explain the "via telecommunications" language?

If Internet service is a data service, what is the telecommunications service over which it's operating?

I only regret that I have but one up to give for this comment.

This was my immediate thought, and I'd love if anyone can point to the jurisprudence or specific portions of the briefs which address this, seemingly, IANALish, glaring logical hole in the FCC's current argument.

That's where living in PaiWorld comes in. In this world, something is and isn't the same thing because Pai says so. '......via telecommunications' only means that if it benefits the corporations, it's not telecommunications when the consumer does it, but, since it benefits the corporations when the bill is formulated, it's telecommunications but not really. Hope I cleared that up.

I think it's clear that the FCC ignored common sense, public opinion, evidence provided by the FCC, and even their own rulemaking process when redefining Internet service as "not common carrier."

The problem is that, even if they hadn't ignored the public and had scrupulously followed the process (including dealing with the obvious shills and fake comments on their commenting process), they still have the right to make this decision.

No, they don't. That is literally the whole point of this lawsuit. The FCC does not have the right to make a decision which is against either the public good or against reason and evidence. If they do, suing them to prove that is how you attain redress for invalid actions.

The Communications Act explicitly gives the FCC the authority to categorize a service as Information or Telecommunication. I don't think the lawsuit all edges they don't have that authority.

The suit can argue that the FCC's decision is incorrect, based on whatever grounds, but the FCC is still tasked with making that decision.

I'll say one good thing about Republicans: they stay loyal after they're bought. Pai has fought on behalf of Big Internet for years.

He did come from Verizon and presumably they have a nice cushy job / bonus waiting for him after he serves Verizon in the government.

Being bought off isn't necessary explain Pai's actions. He may actually honestly believe that this is the best for America and all Americans. Perhaps the kind of person who really believes that is also the same kind of person who chooses to work for Verizon before moving into the public sector.

What I'm saying is, he might only be arrogant and ignorant, rather than arrogant, ignorant, and corrupt.

I'll say one good thing about Republicans: they stay loyal after they're bought. Pai has fought on behalf of Big Internet for years.

He did come from Verizon and presumably they have a nice cushy job / bonus waiting for him after he serves Verizon in the government.

Being bought off isn't necessary explain Pai's actions. He may actually honestly believe that this is the best for America and all Americans. Perhaps the kind of person who really believes that is also the same kind of person who chooses to work for Verizon before moving into the public sector.

What I'm saying is, he might only be arrogant and ignorant, rather than arrogant, ignorant, and corrupt.

I'll say one good thing about Republicans: they stay loyal after they're bought. Pai has fought on behalf of Big Internet for years.

He did come from Verizon and presumably they have a nice cushy job / bonus waiting for him after he serves Verizon in the government.

Being bought off isn't necessary explain Pai's actions. He may actually honestly believe that this is the best for America and all Americans. Perhaps the kind of person who really believes that is also the same kind of person who chooses to work for Verizon before moving into the public sector.

What I'm saying is, he might only be arrogant and ignorant, rather than arrogant, ignorant, and corrupt.

Or he *might* be all three. I strongly believe he is.

I think we should refrain from suggesting corruption without evidence. That's called "libel", and no one wants to be a part of that.

Besides, his obvious bias toward big business can be just as easily explained by his time working for them. He could simply be a True Believer who really thinks the free market is best and fewer regulations mean a better tomorrow.

Personally, I've just about lost all faith in unrestrained capitalism, but that's another conversation entirely.

I'll say one good thing about Republicans: they stay loyal after they're bought. Pai has fought on behalf of Big Internet for years.

He did come from Verizon and presumably they have a nice cushy job / bonus waiting for him after he serves Verizon in the government.

Being bought off isn't necessary explain Pai's actions. He may actually honestly believe that this is the best for America and all Americans. Perhaps the kind of person who really believes that is also the same kind of person who chooses to work for Verizon before moving into the public sector.

What I'm saying is, he might only be arrogant and ignorant, rather than arrogant, ignorant, and corrupt.

Or he *might* be all three. I strongly believe he is.

I think we should refrain from suggesting corruption without evidence. That's called "libel", and no one wants to be a part of that.

Besides, his obvious bias toward big business can be just as easily explained by his time working for them. He could simply be a True Believer who really thinks the free market is best and fewer regulations mean a better tomorrow.

Personally, I've just about lost all faith in unrestrained capitalism, but that's another conversation entirely.

If he was a misguided public servant, he would have respected due process. I think it’s safe to say that he’s about as honest as the rest of his administration

I'll say one good thing about Republicans: they stay loyal after they're bought. Pai has fought on behalf of Big Internet for years.

He did come from Verizon and presumably they have a nice cushy job / bonus waiting for him after he serves Verizon in the government.

Being bought off isn't necessary explain Pai's actions. He may actually honestly believe that this is the best for America and all Americans. Perhaps the kind of person who really believes that is also the same kind of person who chooses to work for Verizon before moving into the public sector.

What I'm saying is, he might only be arrogant and ignorant, rather than arrogant, ignorant, and corrupt.

Or he *might* be all three. I strongly believe he is.

I think we should refrain from suggesting corruption without evidence. That's called "libel", and no one wants to be a part of that.

Besides, his obvious bias toward big business can be just as easily explained by his time working for them. He could simply be a True Believer who really thinks the free market is best and fewer regulations mean a better tomorrow.

Personally, I've just about lost all faith in unrestrained capitalism, but that's another conversation entirely.

If he so wishes ,he can sue me. I say he's corrupt.

Edit- And let me add, that 'faith in unrestrained capitalism' is equal to having a Superman cape and jumping off buildings and having faith it will work for you as well as Superman.

I'll say one good thing about Republicans: they stay loyal after they're bought. Pai has fought on behalf of Big Internet for years.

He did come from Verizon and presumably they have a nice cushy job / bonus waiting for him after he serves Verizon in the government.

Being bought off isn't necessary explain Pai's actions. He may actually honestly believe that this is the best for America and all Americans. Perhaps the kind of person who really believes that is also the same kind of person who chooses to work for Verizon before moving into the public sector.

What I'm saying is, he might only be arrogant and ignorant, rather than arrogant, ignorant, and corrupt.

Or he *might* be all three. I strongly believe he is.

I think we should refrain from suggesting corruption without evidence. That's called "libel", and no one wants to be a part of that.

Besides, his obvious bias toward big business can be just as easily explained by his time working for them. He could simply be a True Believer who really thinks the free market is best and fewer regulations mean a better tomorrow.

Personally, I've just about lost all faith in unrestrained capitalism, but that's another conversation entirely.

Your concern for Pai is touching, but it's not libel. ihatewinter was clearly expressing an opinion. I think Pai is corrupt, too. I think he is setting himself up to get rich after his time in the FCC chairmanship is over.

Now that ISP's are not considered telecommunications they are adding cellular service. Shit makes no sense anymore. An example is Spectrum now office a mobile service along side their internet service. How can you say they are not a telecommunications service? FCC needs to be wiped clean and some people that actually care about the public opinion to run that shit.

I'll say one good thing about Republicans: they stay loyal after they're bought. Pai has fought on behalf of Big Internet for years.

He did come from Verizon and presumably they have a nice cushy job / bonus waiting for him after he serves Verizon in the government.

Being bought off isn't necessary explain Pai's actions. He may actually honestly believe that this is the best for America and all Americans. Perhaps the kind of person who really believes that is also the same kind of person who chooses to work for Verizon before moving into the public sector.

What I'm saying is, he might only be arrogant and ignorant, rather than arrogant, ignorant, and corrupt.

Or he *might* be all three. I strongly believe he is.

I think we should refrain from suggesting corruption without evidence. That's called "libel", and no one wants to be a part of that.

Besides, his obvious bias toward big business can be just as easily explained by his time working for them. He could simply be a True Believer who really thinks the free market is best and fewer regulations mean a better tomorrow.

Personally, I've just about lost all faith in unrestrained capitalism, but that's another conversation entirely.

Your concern for Pai is touching, but it's not libel. ihatewinter was clearly expressing an opinion. I think Pai is corrupt, too. I think he is setting himself up to get rich after his time in the FCC chairmanship is over.

Additionally, the threshold for proof in a defamation case involving a public figure is much higher.

Wikipedia wrote:

In the context of defamation actions (libel and slander) as well as invasion of privacy, a public figure cannot succeed in a lawsuit on incorrect harmful statements in the United States unless there is proof that the writer or publisher acted with actual malice by knowing the falsity or by reckless disregard for the truth.[2] The legal burden of proof in defamation actions is thus higher in the case of a public figure than in the case of an ordinary person.

Hmm... so if broadband is technically classified as an information service and not telecommunications, then does that mean ISPs are allowed to alter or change content before it reaches me from Ars’ servers?

It seems that this case won't be easily decided. I think, based on the definitions, that a cogent argument could be made for telecommunications or information service. I prefer the former interpretation for many of the reasons you all do: Just pass my traffic and leave it alone!

Anyhow, based on the breakdown in this article, there's a high hill to climb to override the FCC as they set the standard and have some case law that could be sufficiently convincing.

I see the problem in these definitions as this: Originally, phone calls were analog (technically they were converted to analog information and returned to standard audible ranges). People didn't view that analog signal as information as such. The internet was always packets and a packet could be dissected and understood in English (more or less). So previous lawmakers viewed them differently.

Today, all of it has mushed (technical jargon) together so that a distinction between the two is not practical. For all intents and purposes of non-technical folks, it's all communication and it's all signals.

I am looking forward to a decision in favor of net neutrality, but I don't see that this will be a clear and simple win.